OBEROI CONSTRUCTIONS LIMITED9FORMERLY KNOWN AS OBEROI CONSTRUCTIONS PVT. LTD.), MUMBAI V. ASSTT. CIT ,CC -23, MUMBAI

MA 24/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2822 (ITAT-MUMBAI)
• Duration Of Justice: 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 29-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Assessee Lawyers: R MURLIDHAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUM BAI , . . , ! BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI N. K. BI LLAIYA, A.M. '#'#$ %# ./ M.A. NOS. 24 & 25/MUM/2015 (ARISING OUT OF ITA NOS. 4366 & 4367/MUM/2011) ( / ASSESSMENT YEARS: 2005-06 & 2006-07) OBEROI CONSTRUCTIONS LIMITED (FORMERLY KNOWN AS OBEROI CONSTRUCTIONS PRIVATE LIMITED), 3 RD FLOOR, COMMERZ, INTERNATIONAL BUSINESS PARK, OBEROI GARDEN CITY, OFF WESTERN EXPRESS HIGHWAY, GOREGAON (E), MUMABI-400 063 / VS. ASST. CIT, CENTRAL CIRCLE-23, ROOM NO. 409, 4 TH FLOOR, AAYAKAR BHAWAN, M. K. ROAD, MUMBAI-400 020 ' ./%(% ./PAN/GIR NO. AAACO 1805 E ( APP LICANT ) : ( RESPONDENT ) APPLICANT BY : SHRI R. MURLIDHAR RESPONDENT BY : SHRI ASGHAR ZAIN ) #* + ,- / DATE OF HEARING : 13.02.2015 ./0 + ,- / DATE OF PRONOUNCEMENT : 13.02.2015 %1 / O R D E R PER N. K. BILLAIYA, AM: THESE TWO MISCELLANEOUS APPLICATIONS BY THE ASSESSE E ARE ARISING OUT OF ITA NOS. 4366 & 4367/MUM/2011 FOR THE A.YS. 2005-06 AND 2006 -07. 2. WITH THESE MISCELLANEOUS APPLICATIONS, IT IS BRO UGHT TO THE NOTICE OF THE TRIBUNAL THAT WHILE DISPOSING OF THE APPEAL, THE TRIBUNAL HA S ERRONEOUSLY REPRODUCED THE PRE- AMENDED SECTION 23 OF THE ACT IN PARAGRAPH 7 OF THE ORDER. 3. WE HAVE CAREFULLY PERUSED THE ORDER OF THE TRIBU NAL. WE FIND FORCE IN THIS CONTENTION. WE, ACCORDINGLY, MODIFY THE ORDER OF TH E TRIBUNAL BY REPLACING THE PRE- 2 MA NOS. 24 & 25/M/15 (A.YS. 05-06 & 06-07) OBEROI CONSTRUCTIONS LIMITED VS. ASST. CIT AMENDED SECTION 23 INCORPORATED AT PARA 7 BY THE AM ENDED SECTION 23 OF THE ACT, WHICH IS APPLICABLE TO THE ISSUE IN QUESTION. PARA 7 OF THE ORDER NOW READS AS UNDER: 7. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E ORDER OF THE LOWER AUTHORITIES. WE FIND THAT THE LEARNED A.O. HAS DET ERMINED THE ANNUAL RATEABLE VALUE BY TAKING THE NOTIONAL MARKET VALUE OF THE PROPERTY AT RS.7 CRORES AND ESTIMATING 12% RETURN WORKED OUT THE REN T FOR 11 MONTHS AT RS.77 LAKHS, AS AGAINST RS.11 LAKHS DECLARED BY THE ASSESSEE. THE INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY IS CHAR GED AS PER THE PROVISIONS OF SECTION 22 OF THE I.T. ACT. FOR THE PURPOSE OF THE ANNUAL VALUE, SECTION 23 PROVIDES AS UNDER:- ANNUAL VALUE HOW DETERMINED. 23. (1) FOR THE PURPOSES OF SECTION 22, THE ANNUAL VAL UE OF ANY PROPERTY SHALL BE DEEMED TO BE ( A ) THE SUM FOR WHICH THE PROPERTY MIGHT REASONABLY B E EXPECTED TO LET FROM YEAR TO YEAR; OR ( B ) WHERE THE PROPERTY OR ANY PART OF THE PROPERTY IS LET AND THE ACTUAL RENT RECEIVED OR RECEIVABLE BY THE OWNER IN RESPECT THER EOF IS IN EXCESS OF THE SUM REFERRED TO IN CLAUSE ( A ), THE AMOUNT SO RECEIVED OR RECEIVABLE; OR ( C ) WHERE THE PROPERTY OR ANY PART OF THE PROPERTY IS LET AND WAS VACANT DURING THE WHOLE OR ANY PART OF THE PREVIOUS YEAR A ND OWING TO SUCH VACANCY THE ACTUAL RENT RECEIVED OR RECEIVABLE BY T HE OWNER IN RESPECT THEREOF IS LESS THAN THE SUM REFERRED TO IN CLAUSE ( A ), THE AMOUNT SO RECEIVED OR RECEIVABLE : PROVIDED THAT THE TAXES LEVIED BY ANY LOCAL AUTHORITY IN RE SPECT OF THE PROPERTY SHALL BE DEDUCTED (IRRESPECTIVE OF THE PRE VIOUS YEAR IN WHICH THE LIABILITY TO PAY SUCH TAXES WAS INCURRED BY THE OWN ER ACCORDING TO THE METHOD OF ACCOUNTING REGULARLY EMPLOYED BY HIM) IN DETERMINING THE ANNUAL VALUE OF THE PROPERTY OF THAT PREVIOUS YEAR IN WHICH SUCH TAXES ARE ACTUALLY PAID BY HIM. EXPLANATION. FOR THE PURPOSES OF CLAUSE ( B ) OR CLAUSE ( C ) OF THIS SUB- SECTION, THE AMOUNT OF ACTUAL RENT RECEIVED OR RECE IVABLE BY THE OWNER SHALL NOT INCLUDE, SUBJECT TO SUCH RULES AS MAY BE MADE I N THIS BEHALF, THE AMOUNT OF RENT WHICH THE OWNER CANNOT REALISE. (2) WHERE THE PROPERTY CONSISTS OF A HOUSE OR PART OF A HOUSE WHICH ( A ) IS IN THE OCCUPATION OF THE OWNER FOR THE PURPOSE S OF HIS OWN RESIDENCE; OR ( B ) CANNOT ACTUALLY BE OCCUPIED BY THE OWNER BY REASO N OF THE FACT THAT OWING TO HIS EMPLOYMENT, BUSINESS OR PROFESSION CAR RIED ON AT ANY 3 MA NOS. 24 & 25/M/15 (A.YS. 05-06 & 06-07) OBEROI CONSTRUCTIONS LIMITED VS. ASST. CIT OTHER PLACE, HE HAS TO RESIDE AT THAT OTHER PLACE I N A BUILDING NOT BELONGING TO HIM, THE ANNUAL VALUE OF SUCH HOUSE OR PART OF THE HOUSE SHALL BE TAKEN TO BE NIL . (3) THE PROVISIONS OF SUB-SECTION (2) SHALL NOT APP LY IF ( A ) THE HOUSE OR PART OF THE HOUSE IS ACTUALLY LET DU RING THE WHOLE OR ANY PART OF THE PREVIOUS YEAR; OR ( B ) ANY OTHER BENEFIT THEREFROM IS DERIVED BY THE OWN ER. (4) WHERE THE PROPERTY REFERRED TO IN SUB-SECTION ( 2) CONSISTS OF MORE THAN ONE HOUSE ( A ) THE PROVISIONS OF THAT SUB-SECTION SHALL APPLY ON LY IN RESPECT OF ONE OF SUCH HOUSES, WHICH THE ASSESSEE MAY, AT HIS OPTION, SPECIFY IN THIS BEHALF; ( B ) THE ANNUAL VALUE OF THE HOUSE OR HOUSES, OTHER TH AN THE HOUSE IN RESPECT OF WHICH THE ASSESSEE HAS EXERCISED AN OPTI ON UNDER CLAUSE ( A ), SHALL BE DETERMINED UNDER SUB-SECTION (1) AS IF SUC H HOUSE OR HOUSES HAD BEEN LET. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPL ICATIONS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 13, 2014 SD/- SD/- (JOGINDER SINGH) (N. K. BILLAIYA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ) * MUMBAI; 2 DATED : 13.02.2014 #.. ./ ROSHANI , SR. PS !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. 34'5 / THE APPELLANT 2. 67'5 / THE RESPONDENT 3. % % ) 8, ( 34 ) / THE CIT(A) 4. % % ) 8, / CIT - CONCERNED 5. '#; 6,$ , % 34- 3$0 , ) * / DR, ITAT, MUMBAI 6. <= >* / GUARD FILE !' / BY ORDER, )/* + (DY./ASSTT. REGISTRAR) , ) * / ITAT, MUMBAI